Rajesh Bansilal Shah v. The State of Maharashtra & Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.33 CRIMINAL APPLICATION NO. 11 OF 2024Rajesh Bansilal ShahAge: 57 Years, Occu: AdvocateR/o: H. No.3-14-25, CTS No.8120,Bansi-kunj, Pandariba, Main Road, Aurangabad, Dist. Aurangabad.… ApplicantVersus1.The State of MaharashtraThrough its Chikalthana PoliceStation Rural, Aurangabad, Dist. Aurangabad.2.Dinesh Ganeshrao ShindeAge: 36 Years, Oecu: Agriculturist,R/o. at present Kumbhefal, Tal. & Dist. Aurangabad.… Respondents...Mr. Patil Vijay Bhalerao, Advocate for Applicant.Mr. A. D. Wange, APP for Respondent / State.Mr. I. K. Wagh, h/f Mr. More Kumar Gaurav M., Advocates for Respdt. No.2....CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :27th June, 2025. Per Court:.Present application has been filed initially for quashmentof the FIR vide C.R. No.212 of 2023, dated 25th May, 2023, registered 233 APPLN.11.2024.odtwith Chikalthana Police Station, Aurangabad (Rural), Taluka andDistrict Aurangabad, for offence punishable under Sections 279, 337,338 and 427 of Indian Penal Code and Section 134 punishable underSection 177 of Motor Vehicles Act, and thereafter by way ofamendment, for quashing the charge-sheet in S.C.C. No.1357 of 2024,pending before the learned Judicial Magistrate First Class, Aurangabad, District Aurangabad, for the offence punishable underSections 304A, 279, 337, 338 and 427 of Indian Penal Code andSection 134 punishable under Section 177 of Motor Vehicles Act. 2Heard the learned counsel for the applicant, the learnedAPP for respondent No.1 / State and the learned counsel forrespondent No.2. In order to cut short, it can be stated that all of themhave made submissions in support of their respective contentions. 3The FIR has been lodged by respondent No.2, who is thebrother of the deceased. Deceased Manoj was proceeding on BajajMotorcycle bearing registration No.MH-20-ER-3908 from Kumbhephalaround 09:00 pm on 21st of May 2023 and had not returned. When hemade enquiry with Anjali, who is the widow of Manoj, as to whetherManoj has returned, she said no, and then the informant had givenphone call on the mobile of Manoj. The said phone was picked up byone Yogesh Kachkure and he informed that Manoj is injured in an 333 APPLN.11.2024.odtaccident that had taken place in front of Akash Hotel on Aurangabad –Jalna Road. The said accident was between motorcycle of Manoj andZen car bearing registration No.MH-09-S-8230. It was informed thatManoj has sustained severe injuries and he is in unconscious state, admitted to Dhoot hospital. Thereafter, the informant alongwith hisbrother came to the hospital where they found that Manoj was inunconscious state, taking treatment in ICU. On the basis ofinformation given to him by Yogesh Kachkure and Shivaji Kachkurethat the accident had taken place due to sudden application of brakesby the car driver and Manoj’s motorcycle, which was following it. Thereafter, that FIR came to be registered on 25th May, 2023 around14:50 hours. 4The charge-sheet shows that in between 16:30 to 17:30hours on 25th May 2023, Panchanama of the spot has been carried outwith the help of two Panchas. Unfortunately, Manoj expired around10:46 hours on 30th May, 2023. The in-quest Panchanama wascarried out and the dead body was sent for postmortem. The cause ofdeath is “death due to multiple injuries sustained”. Thereafter, thestatements of witnesses have been recorded including the statementsof Yogesh Kachkure, Ashok Shinde, Anjali Manoj Shinde (widow of thedeceased) and Ganeshrao Shinde. The fact that is required to beconsidered is that, since the fact at this stage cannot be taken as 433 APPLN.11.2024.odtdenied that Manoj expired due to multiple injuries he had sustained inthe accident and therefore, the enquiry in this matter is restricted to asto whether there is material on record to prima-facie attract theingredients of the offence under which charge-sheet has been filed. 5In view of the death, we are of the opinion that nowSections 279, 337, 338 and 427 of IPC would get merged into Section304A of the IPC. The prosecution has not come with the case that theapplicant was driving the vehicle in dangerous position. It is theprosecution’s story that the accident took place due to suddenapplication of the brakes, which is stated to be the negligent act on thepart of the applicant. In this connection, spot Panchanama in normalcourse would have been helpful, but the fact is that the accident hadtaken place on 21st May, 2023, but the FIR itself has been registeredon 25th May, 2023. Therefore, it is hard to believe that there wouldhave been any traces of the said accident at the time of drawing of thespot Panchanama. Perusal of the spot Panchanama would show thatthe police had taken the informant i.e. Dinesh Shinde with them andthe informant had shown the said spot to the police. The investigatingofficer, in fact, ought to have taken Yogesh Kachkure at the time ofexecution of the spot Panchanama. The informant was admittedly notpresent immediately after the accident at the spot. In fact, he himselfhad depended on the information that was supplied by Yogesh 533 APPLN.11.2024.odtKachkure. Under said circumstance, the spot Panchanama isabsolutely not helpful in the matter, even to the prosecution. 6Taking into consideration the statement of YogeshKachkure, it can be seen that he is the owner of Akash Hotel, which ison Aurangabad – Jalna Road and it is stated that the accident hadtaken place in front of his hotel. He states that around 09:00 pm whenhe was in his hotel, he found that there was an accident on the roadbetween motorcycle and the car and therefore, he went to the spotimmediately. He gives the number of both the vehicles and states thathe himself and the people on the road had tried to catch the driver ofthe car, but the said driver managed to flee away. He then states thathe could get the Aadhaar card in possession of the injured andtherefore, he could know the name of the injured and from his mobile, he gave a phone call to the informant and one Ashok Shinde. We maynot go into the discrepancy as to who had called whom, but the fact isthat he states that on phone he informed that the accident took placebecause of the sudden application of the brakes by the car driver. Theother three witnesses are admittedly the relatives of the informant andthe deceased, who were not present or eyewitnesses to the accident. Here, in order to bring the offence under Section 304A of IPC, theprosecution will have to prove that the death has been caused due torash or negligent act not amounting to culpable homicide. It is settled 633 APPLN.11.2024.odtlaw that mere high speed is not the criteria to conclude that the act isrash or negligent. When it is stated that the dash of the motorcyclewas to the rear side of the car and the cause is stated to be thesudden application of brakes, then what were the circumstances onthe road at the relevant time, speed of both the vehicles, whether anysafe distance was kept by the motorcycle driver, are the aspects, onwhich there should be evidence. It cannot be left to be adduced at thetime of trial. In the statement recorded under Section 161 of theCr.P.C. of witness Yogesh Kachkure, there is nothing to indicate thecircumstances on road, approximate speed of the vehicles andwhether safe distance was kept by the motorcycle driver from the caror not. It would be hard to expect that the investigating officer ought tohave recorded the statement of the driver of any vehicle which wasaround the motorcycle at the relevant time. The people are, in fact, reluctant to come forward and give statements, though they mighthave witnessed an incident. But unless name of such person, whohad witnessed the accident is made known to the investigating officer, he is not expected to record statement of such witness. 7In order to hold a person criminally liable, it has to beproved by the prosecution, as held by the Honourable Supreme Courtin the case of The State of Arunachal Pradesh Vs. RamchandraRabidas @ Ratan Rabidas and another, reported in, (2019) AIR 733 APPLN.11.2024.odt(SC) 4954, which reads as under:-“5.12 Where the rash or negligent driving, results in thedeath of a person, without the knowledge that the said actwill cause death, Section 304A IPC would be applicable. Inother words, Section 304A applies to cases where there isno intention to cause death, and no knowledge that the actdone in all probability will cause death. Negligence andrashness are essential elements of Section 304A. NareshGiri vs. State of M.P. (2008) 1 SCC 791; Rathnashalvanvs. State of Karnataka, (2007) 3 SCC 474 : (2007) 2 SCC(Cri) 84.The three ingredients of Section 304-A, which are requiredto be proved are: (1) the death of a human being; (2) theaccused caused the death; and (3) the death was causedby the doing of a rash or negligent act, though it did notamount to culpable homicide of either description. MisterAnthony Pareira v. State of Maharashtra (2012) 2 SCC648 : (2012) 1 SCC (Civ) 848 : (2012) 1 SCC (Cri) 953The requirement of culpable rashness under S. 304A IPCis more drastic than negligence sufficient under the law oftort to create liability. N.K.VBros (P) Ltd. vs. M. KarumaiAnimal & Ors. (1980) 3 SCC 457. Criminal or culpablerashness means hazarding a dangerous or wanton act withthe knowledge that it is dangerous or wanton, and thefurther knowledge that it may cause injury, but done withoutany intention to cause injury or knowledge that the actwould probably cause. Rathnashalvan vs. State ofKamataka, (2007) 3 SCC 474 : (2007) 2 SCC (Cri) 84." 833 APPLN.11.2024.odt8Mens-rea is not the ingredient of offence under Section304A of IPC, since this Section by its own definition, totally excludesthe ingredients of Sections 299 or 300 of IPC. An accident is anaccident, but in order to bring it within the purview of an offence, thenegligence is required to be proved which can be gathered only uponthe proof of circumstances and the other criteria, which are missing inthe present charge-sheet. 9Though we are aware that the delay alone cannot be theground for quashing the FIR, yet the fact which is coming on record inthis case is that Yogesh Kachkure, initially who had taken the injured toDhoot Hospital, was aware about the accident and certainly he wouldhave given the said history to the hospital who was duty bound toregister the MLC and intimate the same to the police. Manoj wasadmitted in the same hospital on 21st May, 2023 and as per the FIR onthe same day, when the informant went around 09:30 pm and metYogesh Kachkure, he also came to know about the accident. Still, itappears that neither the police themselves (after receiving the MLC)nor the informant had gone to police station to lodge the FIR. By thetime the FIR was registered, the circumstances on road got vanished. The benefit of this aspect will have to be given to the applicant. 933 APPLN.11.2024.odt10No doubt, there appears to be prima-facie evidence aboutthe offence under Section 134 of the Motor Vehicles Act punishableunder Section 177 thereof by the applicant, it appears that his car isdefinitely involved in the accident and therefore, it was his duty to takethe injured to the hospital and inform the accident to the police. Takinginto consideration the punishment prescribed under Section 177 of theMotor Vehicles Act and the second schedule of the Cr.P.C., the saidoffence under Section 134 of the Motor Vehicles Act becomes anon-cognizable offence for which the FIR under Section 154 of theCr.P.C. is not maintainable. Therefore, taking into consideration allthese aspects, it would be an abuse of the process of law if theapplicant is asked to face the trial. Therefore, this is a fit case wherewe should exercise our inherent powers under Section 482 of theCr.P.C. for quashing the proceedings. Hence, the following order ispassed:-O R D E RI.The application stands allowed.II.The proceedings in S.C.C. No.1357 of 2024, pendingbefore the learned Judicial Magistrate First Class, Aurangabad, District Aurangabad, for the offencepunishable under Sections 304A, 279, 337, 338 and427 of Indian Penal Code and Section 134 punishableunder Section 177 of Motor Vehicles Act, arising out 1033 APPLN.11.2024.odtof FIR vide C.R. No.212 of 2023, dated 25th May,2023, registered with Chikalthana Police Station, Aurangabad (Rural), Taluka and District Aurangabad, for offence punishable under Sections 279, 337, 338and 427 of Indian Penal Code and Section 134punishable under Section 177 of Motor Vehicles Act, stands quashed and set aside as against theapplicant. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ]nga